COUNCIL OF THE EUROPEAN UNION Brussels, 3 October 2012 11812/2/12 REV 2 GENVAL 44 DECLASSIFICATION of document: 11812/1/12 RESTREINT UE/EU RESTRICTED dated: 1 August 2012 new status: Public Subject: EVALUATION REPORT ON THE FIFTH ROUND OF MUTUAL EVALUATIONS FINANCIAL CRIME AND FINANCIAL NVESTIGATIONS REPORT ON THE CZECH REPUBLIC Delegations will find attached the declassified version of the above document. The text of this document is identical to the previous version. 11812/2/12 REV 2 EN
COUNCIL OF THE EUROPEAN UNION Brussels, 1 August 2012 11812/1/12 REV 1 RESTREINT UE/EU RESTRICTED GENVAL 44 EVALUATION REPORT ON THE FIFTH ROUND OF MUTUAL EVALUATIONS FINANCIAL CRIME AND FINANCIAL INVESTIGATIONS REPORT ON THE CZECH REPUBLIC 11812/1/12 REV 1 MH/ec 1
TABLE OF CONTENTS 1. Introduction... 3 2. National system and criminal policy...4 2.1. Specialised units... 4 2.1.1. Investigative authorities... 4 2.1.2. Prosecuting authorities... 11 2.1.3. Judges involved in the pre-trial phase... 15 2.1.4. Other relevant authorities... 16 2.1.5. ARO... 17 2.2. Training... 20 2.2.1. Police authorities... 20 2.2.2. Customs authorities... 22 2.2.3. Judicial authorities (judges and public prosecutors)... 23 2.3. Criminal policy... 25 2.4. Conclusions... 27 3. Investigation and prosecution... 31 3.1. Available information and databases... 31 3.1.1. Databases and registers... 31 3.1.1.1. Bank accounts... 31 3.1.1.5. Vessels... 34 3.1.2. Cooperation at national level... 35 3.1.3. Cooperation at the European level... 38 3.2. Financial investigation and use of financial intelligence... 39 3.2.1. Financial investigations... 39 3.2.2. The use and effectiveness of financial investigations... 41 3.2.3. Continuation of a financial investigation after the closure of a case... 42 3.2.4. Special legal powers... 42 3.2.5. Involvement of private experts... 42 3.2.6. Financial intelligence... 42 3.2.7. Use of financial intelligence information as an indicator to initiate a criminal investigation and financial investigation... 45 3.2.8. Use of financial intelligence in the intelligence phase... 45 3.2.9. Cooperation with other authorities... 46 3.3. Cooperation with Europol and Eurojust... 47 3.3.1. Cooperation with Europol... 47 3.3.2. Cooperation with Eurojust... 48 3.4. Conclusions... 49 4. Freezing and confiscation... 52 4.1. Freezing... 52 4.1.1. At national level... 52 4.1.2. Cooperation at European level - Implementation of Framework Decision 2003/577/JHA... 55 4.2. Confiscation (including 2005/212/JHA and 2006/783/JHA)... 67 4.2.1. Legal basis... 67 4.2.2. The types of crime for which confiscation is possible... 69 4.2.3. The authority competent to decide on and enforce the confiscation... 70 4.2.4. Informing persons affected by the measure and legal remedies... 70 4.2.5. Additional information related to possibilities for confiscation referred to in Article 3(2) of Framework Decision 2005/212/JHA... 70 11812/12 MH/ec 1
4.2.6. Possibility to 'pierce the corporate veil' and confiscate property owned by corporations... 72 4.3. At European level... 74 4.3.1. Implementation of Framework Decision 2006/783/JHA... 74 4.4. Conclusions... 76 5. Protection of the financial interests of the EU - available mechanisms, particularly cooperation with OLAF... 78 5.1. Pro-active transmission of information and transmission of information on request to Olaf by customs authorities, police, prosecutors or other law enforcement authorities... 78 5.2. Transmission of information to OLAF on the outcome of criminal cases related to fraud against the financial interests of the Communities... 79 5.3. The role of the European Commission in a criminal investigation involving fraud against the financial interests of the Communities... 80 5.4. Possibility of OLAF agents to take part in criminal investigations... 80 5.5. Possibility of OLAF agents to take part in a joint investigation team... 81 5.6. Coordinating body for contacts with OLAF in concrete cases... 81 5.7. Expectations for OLAF support in cases related to fraud against the financial interests of the Communities... 82 5.8. Conclusions... 82 6. Recommendations... 83 6.1. Recommendations to the Czech Republic... 84 6.2. Recommendations to the European Union, its Member States, institutions and agencies... 85 11812/12 MH/ec 2
1. INTRODUCTION At the Multidisciplinary Group on Organised Crime (MDG) meeting of 17 June 2008, the Group decided that the subject of the fifth round of mutual evaluations was to be "financial crime and financial investigations". The scope of the evaluation covers numerous legal acts relevant in the field of countering financial crimes. However, it was also agreed that the evaluation should go beyond examining how relevant EU legislation had been incorporated into national law and take a wider look at the subject matter 1, seeking to establish an overall picture of a given national system. On 1 December 2008 a detailed questionnaire was adopted by the MDG. 2 The importance of the evaluation was emphasised by the Czech Presidency while discussing the judicial reaction to the financial crisis 3. The significance of the exercise was once again underlined by the Council while establishing the EU's priorities for the fight against organised crime based on the OCTA 2009 and the ROCTA. 4 Topics related to the evaluation, in particular the improvement of the operational framework for confiscating and seizing the proceeds of crime, were mentioned by the Commission in its Communication on an area of freedom, security and justice serving the citizen. Experts with substantial practical knowledge in the field of financial crime and financial investigations were nominated by Member States pursuant to a written request to delegations made by the Chairman of the MDG. At its meeting on 17 March 2009 the MDG discussed and approved the revised sequence for the mutual evaluation visits. 5 The Czech Republic is the 27th Member State to be evaluated during this round. According to the procedure, the experts nominated by Member States should be accompanied each time by observers from the Commission (OLAF), Europol, Eurojust and the Council Secretariat. The experts charged with undertaking this evaluation were Mr Juraj Novocky from the Slovak Republic, Mr Sorin Tanase from Romania and Mr Andreas Schneider from Germany. 1 2 3 4 5 10540/08 CRIMORG 89. 16710/08 CRIMORG 210. 9767/09 JAI 293 ECOFIN 360. 8301/2/09 REV 3 CRIMORG 54. 5046/1/09 REV 1 CRIMORG 1. 11812/12 MH/ec 3
Three observers were also present: Ms Annamaria Majerova (OLAF, European Commission), Ms Teresa Galvez Diez (Eurojust) and Mr Burkhard Mühl (Europol), together with Ms Mari Hämäläinen and Ms Maria Mavridaki of the General Secretariat of the Council. This report was prepared by the expert team with the assistance of the Council Secretariat, on the basis of their findings during the evaluation visit, which took place between 05 and 09 December 2011, and the Czech Republic s detailed replies to the evaluation questionnaire. 2. NATIONAL SYSTEM AND CRIMINAL POLICY 2.1. Specialised units 2.1.1. Investigative authorities 2.1.1.1. Police The police of the Czech Republic is a single police force with several specialised branches and units such as the field police, criminal police, traffic police as well as units dedicated to, inter alia, information technology and forensics. Its objective is to protect the security of people, property and public order, to prevent criminal offences, to meet tasks stipulated by the Act on the Police of the Czech Republic (AoP) 1 and Criminal Procedural Code (CPC) 2 as well as carry out other duties pertaining to internal order and security vested in the police by laws, legal regulations of the EU and international agreements which are part of the legal order of the Czech Republic. The police is subordinate to the Ministry of the Interior. It consists of: the Police Presidium led by the Police President, Units having a nation-wide competence, Regional police directorates, and District police directorates. The Police President has four Deputy Police Presidents 3. The Deputy for the Criminal Police and Investigation Services (CPIS) has under his auspices the three units with nation-wide competence that play a crucial role in the area of combating financial crime and financial investigations. These are: 1 2 3 Act no. 273/2008 Coll., as amended Act no. 141/1961 Coll., as amended The responsibility areas of the four Deputy Police Presidents are: Criminal Police and Investigation Service (CPIS); External Affairs; Financial Management; and Human Resources and Support Enforcement. 11812/12 MH/ec 4
the Unit Combating Corruption and Financial Crimes (UOKFK) (Útvar odhalování korupce a finanční criminality), the Unit Combating Organised Crime (Útvar pro odhalování organizovaného zločinu), and the National Anti-Drug Squad (Národní protidrogová centrála). Besides these units, the Europol National Unit (ENU) (Národní jednotka Europolu) situated under the Police Presidium within the CPIS has an important role especially as regards the exchange of information among Europol, the Member States, third countries (with an operational or strategic agreement) and the Czech competent police units. Additionally, there are also departments focused on economic crimes at the regional police directorates. Furthermore, fourteen regional police directorates are established by law. The territories of the regional directorates are identical with the geographical areas of the fourteen administrative regions of the Czech Republic. The tasks of the police are fulfilled by approximately 40 000 police officers and 9 000 civil staff. The Unit Combating Corruption and Financial Crimes (UOKFK) The central police unit in this field is the UOKFK, which is responsible to the Deputy Police President for criminal proceedings. The UOKFK is comprised of 385 police officers and 65 civil employees. It is headed by a director and two deputy directors and is organised in departments and regional branches. The UOKFK has its central office in Prague and six branches in České Budějovice, Plzeň, Ústí nad Labem, Hradec Králové, Brno and Ostrava respectively. The branches are internally divided into two divisions; operative activities, and investigation. There are six departments on the central level: Department of Corruption and EU Financial Interests Protection, Department of Serious Economic Crime, Department of Tax Fraud, Proceeds of Crime and Money Laundering, Department of Analyses and ICT, Department of International Cooperation and Methodology, Department of the Director s office. 11812/12 MH/ec 5
Main tasks of the UOKFK are: RESTREINT UE/EU RESTRICTED To detect and investigate corruption, serious economic and financial crimes including tax crimes and money laundering; To trace and seize proceeds of crime where appropriate; To detect and investigate serious misconduct that aims to harm financial and economic interests of the European Communities, in cases where the damage exceeds the amount of 150 million CZK (approximately 6 million EUR); To meet the objectives of the Czech Asset Recovery Office (ARO); To draw up tactical and strategic analyses and evaluations of the security situation as regards the causes and conditions of tax crimes, economic and financial crimes, legalisation of proceeds of crime and money laundering and to present relevant findings to competent state authorities with proposals on measures to prevent such crimes; To provide guidance and assistance to other police units in relation to financial investigations; and To cooperate internationally in the area of asset recovery. All UOKFK investigators are required to have a university degree in the relevant field (law, economics, Police Academy, etc.) and a minimum of seven to nine years of police service, based on the performed position. There is also prescribed follow-up training designed for the UOKFK staff members. At the moment there are 16 specialists working in the field of financial investigations at the central office and 12 at regional branches (two per each regional branch). The UOKFK has established, runs and uses several databases and registers, such as ALPHONSE 1 and MagnusWeb and BizGuard 2, and UOKFK takes advantage of technical solutions developed by 1 2 An application designed to assist in the creation of property profiles simplifying the administrative demands during the financial investigation. Applications that enable to interconnect and visualise outputs from different open sources (for example commercial register, media monitor, etc.). The name of the subject is entered into the system and it provides all the matches. MagnusWeb provides the results in a tree-format, where any specific branch can be clicked open. BizGuard uses the same data as MagnusWeb ut provides a visual picture. These are both very useful tools in the initial stage of a financial inquiry to establish the subject and its connections. 11812/12 MH/ec 6
police IT specialists, such as SuperAccounts which allows the translation of information in difficult formats (such as bank data in a pdf format) into structured and workable Excel data. Currently the UOKFK is on the process of integrating all functions of ALPHONSE into the ETR information system. The ETR is currently widely used throughout the police and is in the process of being established as the central case management sytem. Data from all other police information subsystems will also be integrated into the ETR. All police officers use the ETR, and work in the same application. Police officers in the nation-wide units work in this system as well as those in the regional branches. However, the systems are run separately, both at regional and national levels, for example a regional unit cannot access the ETR of a nation-wide unit. Access rights to the overall ETR are based on the hierarchy and post of the specific officer. For example, a police officer can only access those documents that were assigned to him or that he created, but his director can access all documents relevant to him. Even though the ETR is a case management system, it also features other functions such as a statistical tool. This tool provides extensive possibilities to analytical inquiries regarding seized assets, such as an online overview of seized assets; possibility to compare seized assets with assets returned to the damaged party and the amount finally confiscated; and an overall tool for monitoring and evaluation. This system provides an overview of all on-going criminal proceedings in the Czech Republic where any assets have been seized. It also enables to track: which items were seized by which police unit/department which legal provision was used the value of seized assets the amount of returned property/value the final decision of a court on confiscation There is also another e-tool that serves the purpose of so-called blocking. That is a system that allows cross-references between cases and suspects: a case officer asks about a suspect to see if he is the subject of another case somewhere else. If the query comes from the regional level, a blocking will result indicating that the person is a subject in a case in another region. The person who made the initial query can get in touch with the relevant office/units. Additionally, also passive searches are possible. In these passive searches the regional level can inquire about a national level case, and the national level will be notified about the inquiry. 11812/12 MH/ec 7
The possibilities provided by the ETR to effectively manage cases but also to gather statistics on, for example, the number of financial investigations (started and completed) and the overall assets seized is a good example of a best practice where the overall impact of financial investigations is clearly indicated and which allows for a perfect feedback and evaluation tool on the effectiveness of asset recovery activities. The Unit Combating Organised Crime The Unit Combating Organised Crime is not only active in the detection of financial crime or conducting financial investigations. However, the specialised staff of this Unit nevertheless conducts so-called financial investigations in criminal proceedings in certain matters and cases assigned to it in accordance with its competence (based on its internal Act of Conduct). On certain cases the Unit also works together with the UOKFK. The Unit has altogether 401 employees and consists of seven executive departments divided according to type of crime/subject matter 1. Its six branch offices are located in České Budějovice, Plzeň, Teplice, Hradec Králové, Brno and Ostrava. These branches conduct financial investigations in criminal cases belonging to the Unit based on its competence. In Prague, there are six specialists concentrating on finding and securing proceeds of crime in the specific field of crime. Furthermore, each of the six branch offices has one assigned specialist on asset recovery. The main responsibility of the Unit is to conduct financial investigations in assigned criminal proceedings in order to freeze evidence as well as to confiscate property, both in the preinvestigative phase and the investigative phase. Specialised personnel operate in teams together with regular police officers assigned to operative activities, investigations and analysis. All specialists have university education, and regularly attend various specialised seminars. The National Anti-Drug Squad The main aim of the National Anti-Drug Squad is to search for, discover and investigate drug related crime, namely unauthorised production and possession of narcotic and psychotropic substances and poisons, especially as regards the most serious organised and international cases. 1 Violent crime; illegal trade; trafficking in human beings and illegal migration; criminal structures; terrorism and extremism; forgery and counterfeit; serious crime against property; and strategic analysis and information. 11812/12 MH/ec 8
Since 01 January 2007 the Squad embraces also a group of seven police officers from the previous Unit for Detection of Illegal Proceeds and Tax Fraud, who concentrated on detecting and confiscating illegal revenues of drug related crimes. Currently the Unit has altogether 165 employees (150 police officers and 15 civil employees) featuring a specialised group of personnel dedicated to, among others, the seizure of crime proceeds and confiscation of property stemming from criminal activities. The group is divided so that four financial specialists are located in Prague, and one specialist is allocated to each of the regional branch offices. There are six regional branch offices, thus there are altogether ten specialists focusing on financial investigations within the National Anti-Drug Squad. All staff members take part in tracing and investigating crimes in the competence of the National Anti-Drug Squad. They also work on discovering and confiscating property emerging from crimes or being the revenue of criminal acts. The personnel is educated on a centralised platform within the police through courses of continuous educational programs organised by the Police Academy, courses organised by the UOKFK, and internal education conducted through workshops. The competences of the personnel of the National Anti-Drug Squad are based on their status as a police authority and derive from the AoP, the CPC, and other laws regarding the seizure and administration of the property seized in criminal proceedings. 2.1.1.2. Customs The customs administration of the Czech Republic has a three-level structure and is subordinate to the Ministry of Finance. The General Directorate of Customs is the central authority and there are eight customs directorates at the regional level and 54 customs offices at the local level. The customs authorities have, to an extent, the same powers as police authorities in line with Section 12 (2) of the CPC. The subject-matter jurisdiction of customs authorities acting as police authorities is also governed by the CPC. The authorised customs authorities are the General Directorate of Customs in proceedings of national or international relevance (according to Section 3(3) of the Act No. 185/2004) and the customs directorates in other cases (according to Section 4(3) of the Act No. 185/2004). 11812/12 MH/ec 9
Within the General Directorate of Customs, the units active in criminal proceedings (customs and tax fraud unit, and customs drugs unit) are part of the division of investigation under the section of investigation and supervision. Divisions of investigation and supervision with units specialised in detecting organised criminal activity are established within the individual customs directorates. Approximately 400 officers are employed within such units. All members who are working in respective units of the customs administration have to have completed at least secondary education (with the final exam). There are also prescribed follow-up courses of special professional preparation designed for them. Financial investigations of the customs authorities It should be emphasised, that within the field of financial crime, the customs administration deals with customs duties and excise duties. Currently, there is no unit in the customs administration dealing exclusively/mainly with financial investigations. These may be conducted by authorised customs officers. In cases of exceptionally serious crime or financial investigations of a larger scale, the authorised customs officers are obliged to request assistance from police units specialised in financial investigations. The customs has shared competence in criminal proceedings with the police, and customs authorities act in the position of a police authority in cases of: proceedings concerning crimes committed by infringement of customs regulations and the regulations on the import, export or transit of goods; infringement of legal acts when placing and acquiring goods in the EU Member States, provided such goods are transported through the Czech state borders; infringement of tax acts provided that customs authorities are tax administrators according to the special legal acts. Thus the criminal enquiry part of the criminal proceedings falls under the customs competence, up until the initiation of the criminal prosecution. From this point onwards, the criminal investigation is normally a police competence. In practice the partial investigative competence in criminal proceedings means that once the person who has committed the crime has been identified, the case is most often handed over to the police. 11812/12 MH/ec 10
The police may, however, ask the customs to support the investigation, or even conduct it. Unofficial joint teams between the police and the customs can also be formed, by a request of the prosecutor supervising the investigation, or by a mutual agreement of the two parties. In specialised customs cases, such as trade-related fraud, the customs oftentimes has and the expertise as well as best knowledge of the details of the case (declarations of goods, etc.), and the police may ask the customs to take steps in the investigation or at least to explain the details of the case. If coercive measures such as wiretapping are used during such investigations, this is technically organised by the police. 2.1.2. Prosecuting authorities In general, the objective of public prosecution in the Czech Republic is to represent the State in the protection of public interests in matters entrusted by law to the public prosecutor s office. The main tasks of the public prosecution are: to supervise the legality of criminal proceedings during the pre-trial phase and the legality of the measures taken before the initiation of the criminal proceedings (the instructions of the public prosecutors are binding for investigation authorities), to submit proposals for the decision of courts during the criminal proceedings, to draw up the indictment and other decisions in the pre-trial phase according to the law, to represent the indictment at the competent court, to lodge the appeal against the decisions of the court and to participate in the proceedings concerning the appeal in some cases 1. Administratively, the system of public prosecutor s offices belongs under the Ministry of Justice. However, functionally the system is independent of the Ministry of Justice as well as the courts. The system of the public prosecutor s offices is based on hierarchy, with the Supreme Public Prosecutor s Office being the central authority. The system has four levels: the Supreme Public Prosecutor s Office in Brno, the high prosecutor s offices in Prague and Olomouc, regional prosecutor s offices (8), and district prosecutor s offices (89). Seats and territorial scopes of the regional and district prosecutor s offices are the same as the ones of the respective courts. Altogether there are currently 1241 public prosecutors. 1 Only the public prosecutor can submit the indictment to the competent court, and represents the prosecution side during the trial. 11812/12 MH/ec 11
The specialisation of individual public prosecutors is determined by the organisational code of each individual public prosecutor s office, and the framework of specialisation is provided in the Instruction of General Nature of the Supreme Public Prosecutor no. 4/2009. The specialisation areas are: economic and property crime including financial crime, organised crime, corruption, detection, seizure and confiscation of proceeds of crime, cooperation with the EU Member States. At the level of the district public prosecutor s office, there are at least specialists for economic, property and financial crime as well as for corruption. The regional public prosecutor s offices have all of the above mentioned specialisations. Additionally, at the high prosecutor s offices and the Supreme Public Prosecutor s Office there are specialised departments which deal with serious economic crimes and financial crime. The detailed powers of the public prosecutors are to be found in the CPC, and the Act on Public Prosecution, no. 283/1993 Coll, as amended. Public prosecutor must be a citizen of the Czech Republic, who has legal capacity, is blameless, on the day of the appointment reached the age of at least 25, acquired a college degree by studying a master s study programme in the field of law at a college in the Czech Republic, successfully passed the final exam, and the expert judicial exam, his/her moral qualities give a guarantee that he/she will properly perform the function, and consents to his/her appointment to the function of the public prosecutor and to being assigned to a specific Public Prosecutor s Office. 2.1.2.1. Departments of Serious Economic Crime and Financial Crime at Supreme and High Public Prosecutors Office Departments of Serious Economic Crime and Financial Crime were established in 2000 both at the Supreme Public Prosecutor s Office and at both high public prosecutor s offices (Prague and Olomouc). 11812/12 MH/ec 12
The relevant legal basis is the regulation of the Ministry of Justice no. 23/1994 Coll. on the procedural code of the public prosecutor s offices, by which also similar departments at the high prosecutor s office were established. These departments supervise the maintenance of legality in the pre-trial proceedings in matters of intentional crimes 1 : a) committed by an activity of a bank, investment company or investment fund, securities tradesman, insurance company, health insurance company, pension fund, building and loan institution or savings and loan association, if a damage of at least 150 mil. CZK has been caused, b) committed by natural or legal persons, in relation to unauthorised activity of entities referred to in point a) above, if a damage of at least 150 mil. CZK has been caused; c) by which a damage on property or share of property of the state of at least 150 mil. CZK has been caused; d) according to chapter five or six of the Special Part of the CC, if they were committed in favour of an organised criminal group, and criminal offences of the abuse of competence of a public official according to Section 329 of the CC, or criminal offences of accepting a bribe, bribery or indirect corruption according to Sections 331 to 333 of the CC, if they were committed in connection with the detection and investigation of crimes according to chapter five or six of the Special Part of the CC; e) by which the financial or economical interests of the European Union were affected, if a damage of at least 150 mil. CZK has been caused; f) committed against the single European currency in favour of an organised criminal group, by a member of an organised criminal group, in considerable or large extent, or if a police authority performing tasks of the special centre according to Article 12 of the Convention for the Suppression of Counterfeiting Currency conducts proceedings on crimes aimed against the single European currency. The high public prosecutor s office may, with a previous consent of the Supreme Public Prosecutor, decide that a lower public prosecutor s office is competent to supervise the legality in the abovementioned cases. 1 See the Criminal Code (CC) no. 40/2009 Coll., as amended, in connection with Section 15 of the regulation no. 23/1994. 11812/12 MH/ec 13
If the seriousness, material or legal complexity of the matter so require, the high public prosecutor s office may, with a previous consent of the Supreme Public Prosecutor, also decide on its competence to supervise the legality in pre-trial proceedings in certain cases 1, even if a damage lower than 150 mil. CZK has been caused, or if a damage of at least 150 mil. CZK has been caused to a property of another entity. Mandatory supervision of the activities of these specialised departments at the high public prosecutor s offices in Prague and Olomouc is conducted in all abovementioned cases by the Department of Serious Economic and Financial Crime at the Supreme Public Prosecutor s Office in Brno. The Instruction of General Nature stipulated that the Department of Serious Economic and Financial Crime of the Supreme Public Prosecutor s Office in Brno is responsible for cooperation with OLAF. 2.1.2.2. International Affairs Department of the Supreme Public Prosecutor s Office The International Affairs Department at the Supreme Public Prosecutor s Office performs the function of the central judicial authority for international cooperation in pre-trial criminal matters, unless an international treaty or an EU legal tool provides for direct contacts among responsible authorities. The members of this department are also the contact points of the European Judicial Network, CARIN and JIT Network. The prosecutors of the International Affairs Department of the Supreme Prosecutor s Office are entitled to: Have a direct contact with all public prosecutors in the Czech Republic, the Ministry of Justice and with the Police Presidium, Receive and send MLA requests, Co-ordinate the execution of an MLA request in the whole territory of the Czech Republic, Access all criminal files and databases concerning the investigation and prosecution as regards the competences of the International Affairs Department of the Supreme Public Prosecutor s Office, 1 Cases referred to in Section 15 (1) a) to c) and e) of the regulation no. 23/1994 Coll., Procedure Code of the Public Prosecutor s Office. 11812/12 MH/ec 14
Access criminal records Conclude an agreement on setting up a JIT, Ask a public prosecutor to remove delays in the execution of MLA requests, Ask the Supreme Public Prosecutor s office to supervise an inferior public prosecutor s office in the execution of an MLA request (in the case of substantial problems), Appoint just one public prosecutor responsible for the execution of the MLA request in case more than one public prosecutor's office is responsible for executing it, Resolve a jurisdictional conflict between inferior public prosecutor's authorities on the whole territory of the Czech Republic concerning the execution of an MLA request, As regards the transfer of criminal proceedings: Decide to take over criminal proceedings from abroad on the basis of a request, Hand over criminal proceedings abroad on the basis of a request of the responsible prosecutor The International Affairs Department of the Supreme Public Prosecutor s Office has provided a non-binding handbook for prosecutors. It concerns all kinds of international cooperation including asset recovery and freezing orders. 2.1.3. Judges involved in the pre-trial phase In general, the court system in the Czech Republic consists of four levels. At the first level there are the district courts (including the metropolitan court in Brno and 10 district courts in Prague). At the second level there are regional courts (including the metropolitan court in Prague), and the third level is comprised of the high courts. The fourth level is formed by the Supreme Court and the Supreme Administrative Court. The Constitutional Court stands outside of the general court structure due to its exclusive subject matter, constitutional issues. At the moment there are 791 criminal judges (out of the total number of judges which amounts to 3048 judges altogether), 22 of them at the Supreme Court, 56 at the high courts, 239 at regional courts and 474 at district courts. The courts are involved both in the pre-trial and trial phase. Concerning financial crime, the judges of district courts decide in pre-trial proceedings on measures which concern the possible breach of fundamental human rights, such as taking to custody, authorisation of interception, etc. 11812/12 MH/ec 15
They also decide on complaints against decisions of public prosecutors related to the seizure of property in pre-trial proceedings 1. During the trial phase, the courts may decide on confiscation of individual things or other asset values, confiscation of equivalent value, confiscation of the whole property, or forfeiture of a thing or other asset value or equivalent value. Generally speaking, as regards the specialisation of the courts, and specifically within the field of financial or economic crimes, there are such specialised senates within the high and regional courts and generally also in a number of district courts. This specialisation is based both on the internal plan of work at the respective courts as well as generally on the Regulation of the Ministry of Justice no. 37/1992 Coll., on the procedural code for the district and regional courts 2. There is also a specialised senate focused on financial and economic crimes within the Supreme Court according to its internal plan of work. The International Criminal Department at the Ministry of Justice performs the function of the central authority for international cooperation in criminal matters in trial, unless an international treaty or an EU legal tool provides otherwise. 2.1.4. Other relevant authorities 2.1.4.1. Financial Analytic Unit of the Ministry of Finance (Finanční analytický útvar) The Financial Analytic Unit of the Ministry of Finance acts as the Czech Financial Intelligence Unit (FIU). The Czech FIU is an administrative type of FIU. The FIU secures performing the tasks of the Ministry of Finance arising from the Act no. 253/2008 Coll., on selected measures against legitimisation of proceeds of crime and financing of terrorism. It collects and analyses data on suspicious transactions identified and reported by the obliged entities and performs other actions arising from the analysis, specifically if suspicion of criminal activity occurs. The Financial Analytic Unit is the main state authority for anti-money laundering measures. In addition to acting as the Czech FIU as regards foreign counterparts, it is the central state authority for the collection and analysis of STRs. Based on the data it receives, the Financial Analytic Unit can communicate a complaint to the police concerning a suspicion that a crime has been committed. 1 2 See Section 146a of the CPC Section 2 (2a), point 4 11812/12 MH/ec 16
It also coordinates the observance of international sanctions and controls the application of the reporting obligation by the reporting entities. The Financial Analytic Unit also conducts training courses and lectures in the field of its activity. A more detailed description of the activities of the Financial Analytic Unit acting as the Czech FIU is featured in part 3.2.6.1. 2.1.4.2. Office of the Government Representation in Property Affairs (Úřad pro zastupování státu ve věcech majetkových) The Office of the Government Representation in Property Affairs (the Office) was established on 01 July 2002 by the Act on the Office of the Government Representation in Property Affairs (Act no. 201/2002 Coll., as amended). The main aim of this Office is to improve legal services and ensure an efficient protection and economical administration of the property owned by the Czech Republic. As regards financial crime and financial investigations, the most important tasks of the Office include the management of the assets during freezing and also after confiscation. Specifically, based on the Act on the enforcement of the seizure of assets and items in criminal proceedings (Act No. 279/2003 Coll., as amended), the Office is authorised to administer property seized in criminal proceedings. In practice, this means that the Office is involved in taking care of the seized property on the basis of a court decision, public prosecutor s order, or court order. For the Office, it means not only storing the movable property seized, but also taking care of the real estate. The Office currently administers property in the value of tens of millions of CZK. It should be noted that the Office only manages assets during the freezing and after confiscation. It does not have an enforcement task and thus it does not implement or execute for example final decisions on confiscation. 2.1.5. Asset Recovery Office (ARO) In accordance with the provisions of Art 1 of the Council Decision 2007/845/JHA, the UOKFK was appointed as the Czech ARO by the binding instruction of the Police President no. 30/2009. In specific, the ARO s tasks in the area of international cooperation are performed by the Department of International Cooperation and Methodology at the UOKFK. 11812/12 MH/ec 17
The department is a contact point for foreign AROs, and it handles incoming and outgoing international asset tracing requests. Five out of 12 police officers working at this department are in charge of international cooperation 1. Connection to the SIENA network is about to be established for the purposes of secured exchange of information with foreign AROs. As a police unit, the UOKFK carries out the relevant part of pre-trial criminal proceedings under the supervision of the public prosecutor. It also fulfils the tasks in accordance with the provisions of AoP and collects intelligence on criminal activities prior to commencing any criminal proceedings. At the national level, the UOKFK is responsible for the methodology and general approach in the area of asset recovery. The UOKFK organises regular seminars and workshops designed for police officers entrusted with financial investigations in the other units with nation-wide competence (the Anti-Drug Squad and the Organised Crime Unit) as well as in the regions. These events deal with the current legal and tactical challenges in the area of asset tracing and seizure, and examples of best practice are shared among participating officers. Seminars are also attended by prosecutors and representatives from other different agencies that play an important role in the field of asset recovery (the FIU, the Office of the Government Representation in Property Affairs, etc.). As assistance to the other police units, the UOKFK runs an intranet platform dedicated to the methodology and approach containing updated information in relation to asset recovery. As the designated ARO, the UOKFK s responsibility is: to process and reply incoming requests from AROs in other Member States; to support financial investigators in their efforts to trace and seize criminal assets and supply them information obtained from AROs in other Member States; and to act as the central office in relation to asset recovery matters and to gather best practices. The UOKFK runs its own police database named AISU. AISU is an automated information system that comprises of information arising in the course of investigation and analysis proceedings. The UOKFK staff has access to the registers referred to above. Police officers have also access to the following police information systems and databases: 1 However, it is important to note that in the Czech Republic the ARO functions in the broad sense are carried out by the 210 financial investigators deployed throughout the police. 11812/12 MH/ec 18